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16-P-1070 Appeals Court
VIRGILIO LIZARDO vs. NAYSI ORTEGA.
No. 16-P-1070.
Essex. March 7, 2017. - June 12, 2017.
Present: Vuono, Meade, & Maldonado, JJ.
Divorce and Separation, Child support, Modification of judgment.
Parent and Child, Child support. Public Welfare,
Supplemental security income payments.
Complaint for support filed in the Essex Division of the
Probate and Family Court Department on April 27, 2006.
A complaint for modification, filed on August 27, 2015, was
heard by Peter C. DiGangi, J.
Anna Schleelein Richardson (Eve Elliott also present) for
the plaintiff.
Brittany Williams, Assistant Attorney General, for the
Department of Revenue.
MEADE, J. The plaintiff, Virgilio Lizardo (father),
appeals from a modification judgment of the Essex Division of
the Probate and Family Court Department (Probate Court) that
increased his child support payments to the defendant, Naysi
Ortega (mother), for the parties' younger daughter (daughter),
2
who was born in June, 1995,1 and that ordered him to pay the
mother approximately $13,296 from a retroactive lump-sum
distribution of Social Security disability income (SSDI)
benefits, which was to be applied to the father's child support
arrearage. The father contends that the judge (1) erred in
ordering him to make a payment from his lump-sum SSDI benefits
that exceeded the limit imposed by the Federal Consumer Credit
Protection Act (CCPA), 15 U.S.C. § 1673(b) (2012); (2) erred in
ordering postminority child support absent written or oral
findings regarding the factors set forth in the Massachusetts
Child Support Guidelines (2013) (guidelines); (3) infringed on
his equal protection rights by mandating postminority support
notwithstanding that married parents have no such financial
obligation; and (4) erred in failing to dismiss his complaint
for modification and threatening him with contempt proceedings.
For the reasons that follow, we reverse the portion of the
judgment that ordered the father to make a child support
arrearage payment to the mother in excess of the garnishment
limitation imposed by the CCPA. In all other respects, we
affirm.
1. Background. The record is largely silent regarding the
history between the mother and the father, a veteran of the
1
The parties' older daughter is not a subject of these
proceedings.
3
United States Army. It appears that they once were married but
subsequently were divorced. A complaint for support pursuant to
G. L. c. 209, § 32F, was filed in the Probate Court on April 27,
2006, and the resulting judgment has been modified several times
over the past decade.
On June 24, 2013, the mother filed a complaint for
modification of a 2010 judgment that had ordered the father to
pay seventy-five dollars per week in child support. The mother
claimed that because the daughter was graduating from high
school and had been accepted to several colleges, the daughter
required additional financial assistance from her parents. On
March 25, 2014, a modification judgment entered that
incorporated and merged a written agreement between the parties
pertaining to child support obligations. In light of a change
in his income, the father agreed to make child support payments
by wage assignment in the amount of $150 per week, plus an
additional fifty dollars per week that would be applied to his
arrearage. Although the father's child support obligation was a
departure from the guidelines, pursuant to which he would have
been required to pay $191 per week, the parties agreed that the
deviation was in the best interests of the daughter.2
2
The parties also agreed to cosign an educational loan that
would pay for the daughter's college expenses once all other
sources of financial aid had been exhausted. Prior to the
signing of such loan, the mother agreed to provide the father
4
A few months later, the father was hospitalized for
depression and posttraumatic stress disorder. Although he had
been employed as a vocational rehabilitation specialist, this
temporary position ended during his hospitalization. On July
29, 2014, the father filed a complaint for modification of his
child support obligation due to a loss of income. While
awaiting a hearing on his complaint, the father began to receive
service-related disability benefits in the amount of $1,041.39
per month from the Department of Veterans Affairs (VA).3 At
around the same time, the father started a compensated work
therapy (CWT) program at the Bedford VA Medical Center, earning
$400 per week. On September 19, 2014, judgment entered on the
father's complaint for modification. The father's child support
payments were reduced to seventy dollars per week, his
additional payment of fifty dollars per week for his arrearage
was preserved, and all prior orders were to remain in effect
except as so modified.
In June, 2015, the father lost consciousness while sitting
in his car at a stop sign. As a consequence, his driver's
license was revoked and he was unable to complete the CWT
with documentation of the daughter's full-time enrollment in
college, as well as the sources and amounts of financial aid
that the daughter had received.
3
On December 1, 2014, the father's disability benefits from
the VA increased to $1,059.09 per month, due to a cost of living
adjustment.
5
program. On August 27, 2015, the father filed another complaint
for modification, asserting that he had been unable to work due
to his disability, that his only source of income was his
disability benefits from the VA, and that he believed that his
daughter was emancipated. The father requested a termination of
his child support obligation or, if his daughter was not
emancipated, an adjustment to reflect his disability and reduced
income. He also sought the establishment of a more suitable
payment obligation with respect to his arrearage. The mother
did not file any responsive pleadings to the father's complaint.
Two months later, the Social Security Administration (SSA)
notified the father that he was eligible to receive monthly SSDI
benefits in the amount of $1,196.40. Around November 3, 2015,
the father began to receive such benefits, of which $519.60 was
withheld each month for the payment of his child support
obligation. Because the SSA determined that the father had been
entitled to receive these benefits beginning in December, 2014,
the father anticipated that he would receive a retroactive lump-
sum SSDI payment.
A hearing on the father's complaint for modification was
held on November 10, 2015.4 The father first expressed
4
Approximately one week before this hearing, the father
filed a motion for temporary orders. He requested termination
of his child support obligation, an order to pay eighty-seven
dollars per week toward his arrearage in conformity with the
6
uncertainty about whether the daughter was enrolled in college,
and whether she was financially dependent on the mother. Next,
the father's attorney informed the probate judge that the
father's child support arrearage was approximately $58,000,
which included interest and penalties.5 In response to the
judge's inquiry why the father had "such an outrageously high
arrearage," counsel explained that the father had been unable to
work due to multiple hospitalizations and ongoing struggles with
disabilities. Counsel told the judge that the father expected
to receive a retroactive lump-sum SSDI payment soon, and counsel
requested that the payment be split in half, with fifty percent
being retained by the father and fifty percent going toward his
arrearage. Because the amount of this payment had not yet been
determined by the SSA, the judge ordered the matter continued
for one month, and he stated that proceedings would resume in
the Department of Revenue (DOR) session. In the meantime, the
judge issued a temporary order directing the father to pay
ninety-seven dollars per week in child support, plus an
additional twenty-three dollars per week toward his outstanding
guidelines, and permission to maintain a bank account with up to
$2,500 per month exempt from levy so long as his weekly payment
toward the arrearage was timely made.
5
As of November, 2015, the father owed $38,822.23 in
arrearages, $13,184.87 in interest, and $6,591.90 in penalties.
Of the arrearages, $27,644.52 was due to the mother, and
$11,177.71 was due to the Department of Revenue for
reimbursement of public assistance paid to the family.
7
arrearage. The order further stated that the father's
retroactive lump-sum SSDI payment should be held in escrow by
the father's attorney, pending further determination by a judge
regarding those funds. The mother was ordered to provide
documentation to the father, prior to the next hearing,
regarding the daughter's enrollment in college.6
On December 17, 2015, the hearing resumed in the DOR
session on the father's complaint for modification. According
to the DOR's7 unchallenged representation, the father had become
satisfied that the daughter was enrolled in college.
Nonetheless, given that the mother had not filed a responsive
pleading, the father moved to withdraw his complaint so he could
assess whether his VA benefits were going to be reduced in light
of his receipt of SSDI benefits. See Mass.R.Dom.Rel.P.
41(a)(1). When the DOR indicated that it was ready to initiate
contempt proceedings if the modification complaint was
dismissed, the father decided to withdraw his motion to dismiss
6
Before the next hearing date, the father moved to
voluntarily dismiss his own complaint for modification pursuant
to Mass.R.Dom.Rel.P. 41(a)(1). As reason therefor, the father
stated that, assuming that the mother provided adequate
documentation of the daughter's enrollment in college, he was
satisfied that the daughter was not emancipated. The father
reserved the right to withdraw his motion in the event that the
mother failed to produce such documentation as ordered by the
judge.
7
The DOR was acting on behalf of the mother, as it also
does on appeal.
8
and, instead, to pay $123 per week in child support, which was
the amount set forth in the guidelines. With respect to the
father's arrearage, the DOR explained that it was holding
approximately $10,296 that the SSA had withheld from the
father's retroactive lump-sum SSDI payment, and the father's
attorney stated that he held the remaining $6,864 of such
payment in escrow.8 The father argued that $10,296 should go
toward his arrearage, and that the escrowed funds should be
released to him because the CCPA, 15 U.S.C. § 1673(b)(2) (2012),
only permits the DOR to garnish, at most, sixty-five percent of
his lump-sum SSDI benefits for the payment of his arrearage.
The judge declined to give the father all of his escrowed funds.
Final judgment on the father's complaint for modification
entered on December 21, 2015. The judge increased the father's
child support payments to $123 per week, in conformity with the
guidelines. With respect to the father's retroactive lump-sum
SSDI payment, the judge ordered the DOR to release all of the
money it held to the mother, and he ordered the father's
8
As the DOR notes in its brief, nothing in the record
indicates the exact amount of the father's entire retroactive
lump-sum SSDI payment. Based on the unchallenged representation
from the DOR that it held $10,296 (which corresponds to the
amount withheld by the SSA), and the unchallenged representation
from the father's counsel that he held $6,864, we shall assume
that the father's total retroactive lump-sum SSDI payment was
$17,160. We note that a financial summary report from the DOR
showed that the amount of arrears paid in December, 2015, was
$10,427.60.
9
attorney to distribute $3,000 from the escrow account to the
mother, with the remainder going to the father. The father's
checking account was deemed to be exempt from any lien by the
DOR. The present appeal ensued.
2. Discussion. A. Standard of review. Our review of a
child support modification judgment is limited to whether the
judge's factual findings were clearly erroneous, whether there
were other errors of law, and whether the judge appears to have
based his decision on the exercise of sound discretion. See
Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). "[A]
judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made 'a clear error of
judgment in weighing' the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014) (citation omitted).
B. Garnishment in conformity with CCPA. The father
contends that the judge erred in determining that the mother was
entitled to receive approximately $13,296 from his retroactive
lump-sum SSDI payment, which represented more than seventy-seven
percent of such payment, where garnishment for arrearages is
capped at sixty-five percent under the CCPA, 15 U.S.C.
§ 1673(b)(2) (2012). The father claims that sixty-five percent
of his lump-sum distribution already had been withheld by the
10
DOR as payment toward his arrearage. That being the case, the
father argues that the additional payment of $3,000 to the
mother from the funds being held in escrow by the father's
attorney caused the father's garnishment to exceed the limit
permitted under Federal law.9 We agree.
The collection and distribution of child support payments
by a State are governed by the Child Support Enforcement Act
(CSEA), Title IV, Part D of the Social Security Act, 42 U.S.C.
§§ 651-669b (2012). See Rosen v. Rosen, 90 Mass. App. Ct. 677,
682 & n.8 (2016). In Massachusetts, the DOR has been designated
as the Commonwealth's so-called "IV-D agency" charged with
responsibility for providing child support enforcement services,
including the establishment, modification, and enforcement of
child support obligations. G. L. c. 119A, §§ 1, 1A. See
Morales v. Morales, 464 Mass. 507, 510 n.5 (2013). Pursuant to
G. L. c. 119A, § 6(a), the DOR is authorized to institute
collection procedures for all accrued child support arrearages,
including income garnishments, tax refund intercepts, property
9
The father states that he is not seeking the return of the
$3,000 because he wants to fulfil his child support obligation
as soon as possible. He is concerned, however, that it appears
to be a common practice for the DOR to pursue, and Probate Court
judges to order, child support payments in excess of the limits
specified in the CCPA. Given that the issue has been fully
briefed and argued by the parties, is one of public importance,
and is likely to recur, we address its merits. See Smith v.
McDonald, 458 Mass. 540, 543 n.4 (2010); Custody of Victoria,
473 Mass. 64, 65 n.2 (2015).
11
liens, and contempt proceedings. Such authority, however, is
not unlimited.
Congress enacted the CCPA for the purpose, among others, of
enabling debtors to retain sufficient earnings to support their
basic needs, thereby averting the necessity of having to declare
bankruptcy. See Kokoszka v. Belford, 417 U.S. 642, 651 (1974).
The CCPA establishes the maximum amount of "aggregate disposable
earnings of an individual for any workweek" that can be
garnished to enforce a support order. 15 U.S.C. § 1673(b)(2)
(2012). The term "earnings" means "compensation paid or payable
for personal services, whether denominated as wages, salary,
commission, bonus, or otherwise, and includes periodic payments
pursuant to a pension or retirement program." 15 U.S.C.
§ 1672(a) (2012). The term "disposable earnings" means "that
part of the earnings of any individual remaining after the
deduction from those earnings of any amounts required by law to
be withheld." 15 U.S.C. § 1672(b) (2012). Under the CCPA,
where an individual is not supporting a spouse or dependent
child who is not the subject of the support order, and where
support has been owed for more than twelve weeks, garnishment
shall not exceed sixty-five percent. 15 U.S.C. § 1673(b)(2)
(2012). The CCPA further provides that "[n]o court of the
United States or any State, and no State (or officer or agency
12
thereof), may make, execute, or enforce any order or process in
violation of this section." 15 U.S.C. § 1673(c) (2012).
The father's retroactive lump-sum distribution of SSDI
benefits constituted earnings. Such payment was the equivalent
of wages because it represented compensation for personal
services that was lost as a consequence of the father's
inability to work once he became disabled. See Martin v.
Martin, 70 Mass. App. Ct. 547, 549-550 (2007), and cases cited.
See also United States v. Ashcraft, 732 F.3d 860, 864 (8th Cir.
2013) (disability payments are designed to function as wage
substitutes and, therefore, are "earnings"); Rosenberg v.
Merida, 428 Mass. 182, 186 (1998), citing Miller v. Miller, 890
P.2d 574, 576-577 (Alaska 1995) (SSDI payments represent
earnings from parent's past contributions to Social Security
Trust Fund). See generally guidelines § I.A (defining sources
of income).10 In our view, the father's lump-sum SSDI payment
constituted earnings during the work week in which he (and the
DOR on his behalf) received it. We have found no authority, and
10
We do not decide which non-Social Security lump-sum
payments constitute earnings within the meaning of 15 U.S.C.
§ 1672(a) (2012). Cf. Aetna Cas. & Sur. Co. v. Rodco Autobody,
965 F. Supp. 104, 109 (D. Mass. 1996) ("[L]ump sum severance
payments by the employer do not fall within the protective
umbrella of 15 U.S.C. § 1673"); Pallante v. International
Venture Invs., Ltd., 622 F. Supp. 667, 669 (N.D. Ohio 1985) (The
fact that a severance payment is made in a lump sum places it
outside the statutory provisions"). See also Kokoszka v.
Belford, 417 U.S. at 651 (exploring reach of 15 U.S.C. § 1673).
13
the DOR has cited none, for the proposition that this payment
should be retroactively reapportioned over the ten months from
December, 2014, through September, 2015, when the father was
entitled to receive SSDI benefits. Given that the father's
refund of such benefits was a lump-sum disbursement, we treat it
as a single aggregate distribution for one work week.
As we have noted, the father only takes issue with the
portion of the judgment that directed the father's attorney to
release an additional $3,000 from the escrow account to the
mother. The father correctly asserts that the DOR already held
$10,296 from his lump-sum SSDI distribution as payment toward
his arrearage. This latter amount represented sixty percent of
the total SSDI disbursement of $17,160. See note 8, supra.
Because the maximum allowable garnishment under the CCPA for an
individual in the father's circumstances is sixty-five percent,
only an additional $858 could be released from the escrow
account to the mother, bringing the father's total garnishment
to $11,154, or sixty-five percent of his retroactive lump-sum
SSDI payment. The judge erred in ordering the release of the
$3,000 to the mother because such payment resulted in a
garnishment that exceeded the permissible limit under the CCPA.
The purpose of the CCPA -- to protect a basic level of income --
is defeated if a noncustodial parent is required to make
payments toward arrearages in excess of the statutory limits.
14
C. Postminority support. The father contends that the
judge erred by ordering postminority support for the daughter
without making any findings regarding the factors set forth in
the guidelines. He asserts that the judge considered only
whether the daughter was enrolled in college, and whether there
was an outstanding child support arrearage. No evidence was
presented, and no findings were made, as to whether the daughter
remained financially dependent on the mother. In the father's
view, the judge abused his discretion by ordering the father to
pay postminority support. We disagree.
At the hearing on December 17, 2015, the DOR informed the
judge that the father was satisfied that the daughter was
enrolled in college. The father, who was represented by
counsel, did not challenge the DOR's statement. Moreover, the
father subsequently agreed to the imposition of a weekly child
support obligation of $123, which was the amount suggested by
the guidelines. In doing so, the father withdrew his motion to
dismiss his complaint for modification under Mass.R.Dom.Rel.P.
41(a)(1). It is apparent from the record that the father's
decision was influenced by the fact that the DOR was prepared to
initiate contempt proceedings if the father did, in fact,
dismiss his own complaint. Nonetheless, as the agency charged
with responsibility for providing child support enforcement
services, the DOR would have been acting well within its
15
statutory authority by commencing such proceedings. See G. L.
c. 119A, § 6(a) (DOR authorized to initiate contempt proceedings
to collect all accrued child support). Had a contempt
proceeding occurred, the father could have mounted a defense by
arguing that he genuinely did not have the ability to comply
with existing child support orders. Given the alternatives, the
father considered his options and decided to accept the
imposition of a weekly child support obligation of $123. In
these circumstances, the father has waived his right to argue on
appeal that the judge abused his discretion in ordering
postminority support. See Moran Travel Bureau, Inc. v. Clair,
12 Mass. App. Ct. 864, 865 (1981); Litchfield v. Litchfield, 55
Mass. App. Ct. 354, 357 (2002).
D. Right to equal protection. The father contends that
the judge infringed on his right to equal protection under the
law by mandating the payment of postminority support for the
daughter notwithstanding the fact that married parents have no
such financial obligation. However, because the father did not
raise this argument in the Probate Court, it is waived. See
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
3. Conclusion. So much of the December 21, 2015,
modification judgment as ordered the father to pay the mother an
additional $3,000 (beyond the $10,296) toward his child support
arrearage, an amount that exceeded the maximum allowable
16
garnishment under the CCPA, is stricken from the judgment.
Given that the father does not seek a return of his overpayment,
see note 9, supra, we need not remand the matter to the Probate
Court for further proceedings. In all other respects, the
December 21, 2015, modification judgment is affirmed.
So ordered.